Avery v. US Social Security Administration, Acting Commissioner

Filing 13

///ORDER granting 8 Motion to Reverse Decision of Commissioner; denying 12 Motion to Affirm Decision of Commissioner. The case is reversed and remanded for further proceedings under Sentence Four of Section 405(g). Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Amy Lynne Avery
v.

Civil No. 17-cv-443-JD
Opinion No. 2018 DNH 111

Acting Commissioner,
Social Security Administration

O R D E R
Amy Lynne Avery seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the Acting Commissioner’s decision, denying
her application for disability benefits under Title II of the
Social Security Act.

Avery moves to reverse, contending that

the Administrative Law Judge (“ALJ”) erred in evaluating her
testimony, which resulted in an erroneous finding that she was
not disabled.

The Acting Commissioner moves to affirm.
Standard of Review

In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence.

§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34

(1st Cir. 2016).

Substantial evidence is “more than a scintilla

of evidence” but less than a preponderance of the evidence.
Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (internal
quotation marks omitted).

When the record could support

differing conclusions, the court must uphold the ALJ’s findings
“if a reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.”
Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (internal quotation marks omitted); accord
Purdy, 887 F.3d at 13.
Disability for purposes of disability insurance benefits
means “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(c)(1)(A).

In determining

whether a claimant is disabled, the ALJ follows a five-step
sequential analysis.
10.

20 C.F.R. § 404.1520; Purdy, 887 F.3d at

The claimant bears the burden through the first four steps

of proving that her impairments preclude her from working.
Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

At the

fifth step, the Acting Commissioner has the burden of showing

2

“evidence of specific jobs in the national economy that the
applicant can still perform.”

Purdy, 887 F.3d at 10.

Background
Avery alleged that she became disabled on April 1, 2012,
when she was thirty-nine years old.

She contends that her

disability is due to high blood pressure with complications,
migraine headaches, anxiety, panic attacks, and a back injury.
A hearing before an ALJ was held on her application.
The medical evidence begins in September of 2012, when
Avery went to the hospital because of pain and headaches.

She

was pregnant with her first child at that time but had not
received any prenatal care.

She was transferred to another

hospital, put on medication, and her son was delivered
prematurely because of Avery’s worsening hypertension.

After

the delivery, Avery did well with no complications.
In July of 2013, she was seen at Maine Medical Center to
coordinate her care because she was pregnant with her second
child and had chronic hypertension.

Avery reported severe

migraines that were treated with Vicodin, although providers
were concerned about neonatal withdrawal.
was controlled with medication.

Avery’s hypertension

She required treatment again in

August of 2013 for migraine pain and vomiting.

In September,

she again had episodes of high blood pressure and headache, and

3

her second child was delivered early because of Avery’s
preeclampsia.

She left the hospital four days later.

During the fall, Avery was treated for migraines.
Providers tried different medications for her migraine pain.

In

November, she began a new treatment for migraines that resulted
in improvement of frequency and severity of headaches.

Avery

had difficulty controlling her blood pressure, so that providers
tried different medications.

By July of 2014, Avery’s symptoms

had improved, and her blood pressure was controlled.
In October of 2015, Avery reported anxiety that was causing
her blood pressure to rise.

The provider recommended counseling

and increased Avery’s blood pressure medication.

Avery reported

improvement in November.
Dr. Peter Loeser did a consultative examination of Avery in
December of 2015 and completed a form for physical functional
capacity.

Dr. Loeser found that Avery’s blood pressure was high

and he recommended that she follow up with her providers.

All

other parts of the examination showed normal results, with no
neurological deficits, normal strength, normal sensation, and
normal ability to sit, stand, and do postural activities.

In

his assessment, Dr. Loeser found no physical limitations.
At the hearing on January 7, 2016, Avery testified that she
was married and had two young disabled sons.

She said that

neither she nor her husband was working and that the family
4

lived with her husband’s mother who helped to take care of them.
Avery does not drive.
When asked to explain why she could not work, Avery
testified that her migraine headaches caused symptoms that
include nausea and auras.

She said that her hands and feet

swelled so that she cannot walk, that missing medications can
cause disastrous symptoms, that she cannot do heavy lifting or
physical activity, that she cannot do long-term screen work, and
that she cannot grasp or hold things.

Avery testified that

working in the past made her blood pressure get too high and
that physical activity made her blood pressure spike.

She said

that she checked her blood pressure four times per day and that
she took morphine in the morning and evening to help with pain.
Avery testified that her husband and mother-in-law did most
of the child care and other activities to take care of the
family.

She said that she could stay with her younger son if

her husband and mother-in-law had to go out but could not assist
her older son who weighed more.

She also said that most of the

time she was trying to manage her own issues, watching
television and reading to keep her mind “off of things.”
The ALJ found that Avery had severe impairments of
essential hypertension, migraines, and anxiety and non-severe
impairments due to a cyst in her left wrist, asthma, and back
pain.

The ALJ found that Avery had the residual functional
5

capacity to perform light work, with some limitations in foot
and hand work and postural activities.

Based on that

assessment, the ALJ concluded that Avery could return to her
prior work as a retail sales attendant and that other jobs
existed that she could do.
Avery was not disabled.

For that reason, the ALJ found that

The Appeals Council denied Avery’s

request for review, making the ALJ’s decision the final decision
of the Acting Commissioner.
Discussion
Avery moves to reverse the Acting Commissioner’s decision
on the ground that the ALJ did not properly assess her testimony
under the requirements of Social Security Ruling (“SSR”) 16-3p.1
The Acting Commissioner agrees that SSR 16-3p applies here but
argues that the ALJ properly assessed Avery’s testimony.

The

Acting Commissioner further contends that substantial evidence
supports the decision.
An ALJ must consider all of a claimant’s symptoms,
including pain, for the purpose of determining whether a
medically determinable impairment, which could reasonably be
expected to cause those symptoms, is disabling.

20 C.F.R.

Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 2016 WL 1119029 (Mar. 16, 2016).
1

6

§ 404.1529(a).2

When one or more medically determinable severe

impairments are found, the ALJ evaluates the intensity,
persistence, and limiting effects of those impairments, such as
pain, and their impact on the ability to work.

§ 404.1529(c).

SSR 16-3p provides additional guidance for that analysis.
In this case, the ALJ found that Avery had severe medically
determinable impairments of essential hypertension, migraine,
and anxiety.

Despite those impairments, the ALJ found that

Avery retained the ability to do light work with some
limitations.

Avery contends that the ALJ’s assessment of the

intensity, persistence, and functional limitations of her
symptoms was wrong because she failed to properly evaluate
Avery’s testimony about her symptoms.
A.

Lack of Treatment

Avery faults the ALJ for noting that she had not sought
treatment from the alleged onset date in April of 2012 until
September of 2012, to find that her claims about symptoms during
that time were not consistent with the record.

She argues that

SSR 16-3p requires that an ALJ consider possible reasons why she
did not seek treatment before considering the absence of
treatment as evidence of a lack of intensity or persistence in

Section 404.1529 was amended effective March 27, 2017,
after the date of the ALJ’s decision in this case.
2

7

symptoms.

Avery contends that, as she testified, the lack of

treatment “was due to her two successive pregnancies.”
As the Acting Commissioner points out, pregnancy does not
explain a lack of treatment.

It is more reasonable to expect

that a claimant would be receiving treatment during pregnancy.
Therefore, the lack of treatment could properly be considered in
evaluating Avery’s testimony about her symptoms.
B.

Record Evidence

Avery contends that the ALJ erred in finding that her
testimony about her symptoms was not consistent with certain
treatment notes because the cited records do not show normal
function.

The ALJ stated that Avery “had some problems with

very high blood pressure during one of her pregnancies, as noted
in September of 2012; however the condition responded to medical
treatment.”

In fact, Avery had difficulty with high blood

pressure during both pregnancies, which appears to have caused
the premature delivery of both of her children.
The other cited evidence during 2012 and 2013 shows a
pattern of treatment, with varying levels of response to the
treatment.

High blood pressure remained a problem, as did

migraine headaches.

While the ALJ stated that Avery’s migraines

responded well to Vicodin, Avery’s providers stated that Vicodin
was not a good long-term solution and could cause problems

8

during her pregnancy.3

Therefore, the record does not support

the ALJ’s more positive evaluation of Avery’s function during
2012 and 2013.

While later medical records tend to show

improvement, a question remains as to whether Avery experienced
disabling impairments for a period of twelve months or more.4
C.

Daily Activities

Avery also contends that the ALJ erred in evaluating her
daily activities.

The ALJ found that Avery’s daily activities

showed that she could do “simple light exertional tasks” because
she was taking care of her two young disabled children.

Avery

testified that her husband and her mother-in-law took care of
the children, and also did most of the other household tasks.
The ALJ does not cite evidence to show that, contrary to
her testimony, Avery took care of the children.
D.

Dr. Loeser’s Opinion

The Acting Commissioner contends that Dr. Loeser’s
examination notes and opinion support the ALJ’s findings.

As

the ALJ acknowledged, however, Dr. Loeser did not fully consider

Indeed, the ALJ’s analysis suggests that Avery began to
seek pain killing drugs in July of 2014 after Vicodin was
stopped.
3

The Acting Commissioner argues that other cited evidence
shows that the ALJ properly did not accept Avery’s testimony.
The more positive evidence, however, is for a later period.
4

9

Avery’s subjective complaints or review the entire record.

The

ALJ did not explain what part of the record was not reviewed.
A reviewing consultant’s opinion that is based on a
“significantly incomplete record” cannot be accorded
“significant weight” and cannot provide substantial evidence to
support an ALJ’s finding.

Alcantara v. Astrue, 257 Fed. Appx.

333, 334 (1st Cir. 2007).

The ALJ bears the burden of

determining and explaining whether missing evidence is material
to assessing the claimant’s limitations.

See Hughes v.

Berryhill, 2018 WL 791236, at *2 (D.N.H. Feb. 8, 2018) (citing
Giandomenico v. U.S. Soc. Sec. Admin., 2017 WL 5484657, at *4
(D.N.H. Nov. 15, 2017)).

In this case, the ALJ noted that Dr.

Loeser did not have the opportunity to review the entire record,
but the ALJ did not determine or explain whether the omission
was material to assessing Avery’s functional capacity.
Therefore, Dr. Loeser’s opinion cannot provide substantial
evidence to support the ALJ’s findings.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 8) is granted.

The Acting Commissioner’s motion

to affirm (document no. 12) is denied.

10

The case is reversed and remanded for further proceedings
under Sentence Four of § 405(g).
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 24, 2018
cc:

Terry L. Ollila, Esq.
D. Lance Tillinghast, Esq.

11